Fair Opportunity and Responsibility

Fair Opportunity and Responsibility sets forth an overarching normative vision of excuses, weds criminal law and moral theorizing, and provides both breadth and depth in its analysis. The early chapters articulate the underlying theoretical account, and the later chapters analyze specific potential excuses, such as insanity and structural injustice.Brink operates within a retributivist framework, arguing that culpable wrongdoing is the basis of blame and punishment. Because we suspend blame when someone is excused, Brink believes we can understand responsibility by understanding excuses. Brink's overall responsibility condition is the "fair opportunity to avoid wrongdoing," which includes cognitive and volitional competence ("normative competence") as well as situational control. Capacity is determined counterfactually and is scalar.Brink's view is a realist conception of responsibility, where our "conception of responsibility … can be specified independently of our reactive attitudes [such that] it can serve to ground or justify those attitudes" (42). Brink takes his account to be consistent with reasons-responsive compatibilist views but does not argue for compatibilism explicitly. He notes that although our "assumptions and practices could be systematically mistaken, we should accept this conclusion reluctantly, only if we can identify no viable conception of responsibility" (6). And, to Brink, "the fair opportunity conception supplies this need" (6). He notes, "Responding to skepticism about responsibility seemed no more interesting to me than responding to skepticism about knowledge or the existence of the external world" (19). Instead, Brink mines the existing criminal law to learn when it is that we deny agents are blameworthy, such that we can learn what is required for responsibility.Valuable and interesting discussions and insights pervade this monograph. It contains almost a dizzying number of topics, including structural injustice, situationism, incompetence (including psychopathy), immaturity, addiction, and provocation. Along the way, Brink addresses countless issues that plague moral philosophers and criminal law theorists. To name just a handful, he takes a deep dive into how to understand Peter Strawson's (1962) compatibilism; offers a take on reasons-responsiveness at the agent level rather than at the "mechanism level" that John Fischer and Mark Ravizza (1998) explicate; challenges Derk Pereboom's (2014) defense of incompatibilism; presents an argument for what blame consists in; and defends retributivism against views that conflate it with general punitiveness.Brink's book is a triumph. It is valuable because it is the most complete and comprehensive articulation of responsibility and excuses, and because every chapter contains insights as to particular excuses themselves. Nevertheless, let me raise three reservations about the monograph, two having to do with its structure and rigidity in organization and conceptualization and a third calling into question the umbrella of "fair opportunity" for excusing conditions writ large.First, the organization. In its deep and rich analysis of the leaves on the trees, the book loses sight of the forest. To be fair, Brink's task is daunting; he has much to say about just about every existing and plausibly possible criminal law excuse, and to give structure to the analysis he needs to get into the trenches of criminal law doctrine. If one wants to learn why we ought to excuse juveniles, then, one has a thorough, stand-alone chapter to read, a chapter that examines intricacies beyond excuse including the actual practice of juvenile justice and the constitutional jurisprudence surrounding it. Indeed, the chapter on juveniles is outstanding, and, in fact, anyone wanting to understand any excusing doctrine would be well advised to read Brink. Still, because of this siloed approach to each excusing doctrine, it is difficult for the reader to keep track of the overall conceptual architecture that Brink is using and how the pieces relate. Rather than taking every excuse on its own terms and showing how it relates to normative incompetence or situational control, it would have been helpful for Brink to impose more top-down structure to articulate how his view generally applies. The reader is left to wonder how the claims about one excuse relate to another. And, at some points, comparisons—such as how to think about duress—are repeatedly revisited instead of fully explicated in one crisp discussion.Second, the criminal law's conceptualization. At times, Brink does not seem to fully grasp the terrain he is mapping. His articulation of criminal law's structure could be improved in three respects. First, Brink draws too strong a distinction between the role of offenses and defenses. He claims, for instance, "The different burdens of proof associated with the two kinds of culpability (and their denials) is a signal that they play very different roles within the criminal law" (165). But this claim is contentious as a matter of both theory and practice. The Model Penal Code (MPC), on which Brink relies frequently, requires the state to disprove defenses beyond a reasonable doubt; moreover, requiring a defendant to prove he is not responsible is certainly normatively debatable, even if constitutionally permissible. Why would it be defensible to place the burden on the state to prove a mental state going to the wrong done, but then require the defendant to persuade a jury that she was not responsible at the time? Second, and relatedly, Brink fails to attend to the permeability of the offense/defense divide. Brink often repairs to the argument that defendants, even if they lack a capacity at a particular moment, may be blameworthy for this lack of capacity and thus not entitled to an excuse. But criminal law does not work in such stark terms. Instead of simply denying a defendant an excuse full stop because of his earlier blameworthiness, the criminal law, and the MPC in particular, look to the defendant's culpability vis-à-vis the particular harm when the impairment occurs. That is, an intoxicated actor is not responsible for every crime simply because she is responsible for her intoxication. For instance, she may still lack the mental state for the required criminal act. Criminal law does not treat responsibility as simply an on/off switch, where one loses excuses because of early choices. Instead, the content of those earlier choices bear on what crime can be charged. Finally, Brink notes the difficulty of reconciling the scalarity of excuses with criminal law doctrine, but he fails to fully appreciate the potential for sentencing discretion. Brink largely dismisses sentencing as the forum for taking into account fine-grained mitigating determinations because of mandatory minimums and sentencing enhancements. Yet one might query whether mandatory minima are as pervasive as Brink asserts; moreover, this feature of existing law is not one to which retributivists subscribe. Hence, theoretically, at least, a properly functioning sentencing regime could take mitigating factors on board. Criminal law has more shades of gray, and more complexity to its analysis, than Brink sometimes gives it credit for, and the failure to appreciate this sometimes misunderstands the stakes in criminal law, thereby preventing more nuanced and fluid analysis across offenses, defenses, and sentencing generally.Third, are all excuses really about "fair opportunity"? At one point, Brink makes a passing observation that is worth dwelling on. He notes that "there is a sense in which fair opportunity also animates defenses that are justifications" (209). As he explains: "When I commit an offense as a lesser evil, I lack a fair opportunity to avoid the offense, and when I use self-defense to repel a culpable aggressor, he leaves me no fair opportunity to avoid harming him. In these ways fair opportunity provides a rationale for defenses generally, and not just excuses" (209). This is a rather striking observation, as I would think that a view of excuses that swallows justifications is at least prima facie problematic. For one thing, it calls into question whether actors who engage in justified (and arguably right) actions are praiseworthy, given that we might deny someone is praiseworthy for doing something she is not responsible for. For another, it requires us to ask whether the way that "fair opportunity" operates is the same for duress, necessity, and self-defense. Lesser evils might be distinguished because bystanders need not get involved at all; this is not the case for duress and self-defense. Alternatively, some theorists think of duress as more akin to justifications than to excuses (Moore 2020: 320). This argument sees the limitation of options as making the action closer to permissible, whereby then a supplemental normative impairment will have to do the work to get the defendant over the excusing threshold; but given that the action is close to justified, it will not take much. That is, the limitation of options is not excusing at all.More generally, this observation casts doubt on a one-heading penumbral account of "fair opportunity." It is true, as Brink notes, that the criminal law cares about prospective fairness, as evidenced by its principle of legality, but fairness does not do the explanatory work for most of Brink's account. The ways in which normatively incompetent agents are not be responsible for their wrongdoing fundamentally undermine their agency for that criminal act. It is true that it is unfair to blame them, but it is more importantly inapt. If I can't blame my book for falling and landing on my toe, the idea that it is unfair to blame it misses the mark. Instead, books just are not apt targets of blame. When we withhold blame from the person who suffers delusions that she is being ordered to kill her children by the devil or the person who experiences strong internal compulsions from her kleptomania, we do not start with the idea that it is unfair. Instead, we withhold blame because the agent is not responsible, and it is unfair to blame those who are not responsible. In contrast, when we think that someone faced with limited options should not be blamed, the unfairness of her situation does explanatory heavy lifting—given her options, it would be unfair to ask her to do otherwise. That these two kinds of judgments are significantly different in kind is revealed by Brink's observation that lack of fair opportunity can be at play for justifications. When an agent does rise to the occasion, when she does the right thing even given her limited options, this does not fundamentally undermine her responsibility. We do praise the agent who acts rightly, even when the situation was unfairly thrust on her.Though I might have assembled the book differently and questioned what the criminal law reveals about the underlying morality at times, I cannot help but marvel at Brink's accomplishment. I cannot think of another writer who has so systematically worked through so many moral and legal intricacies. It has a rightful place on the shelf of all theorists interested in responsibility and the criminal law.